DePatty v. Huron County Sheriff's Department

OPINION AND ORDER SUMMARILY DISMISSING THE COMPLAINT
AND CERTIFYING THAT AN APPEAL COULD NOT BE TAKEN IN GOOD
FAITH

THOMAS
L. LUDINGTON United States District Judge

Michigan
prisoner Michael Joseph DePatty has filed a pro se civil
rights complaint. Compl., ECF No. 1. Plaintiff DePatty is
incarcerated at the Huron County Jail in Bad Axe, Michigan.
The complaint alleges that the Defendants-two police
departments and three named law enforcement officers-used
excessive force when Plaintiff was arrested after a traffic
stop in violation of his Fourth Amendment rights. Plaintiff
seeks monetary damages in the amount of $3, 000, 000. Compl.
at 4.

I.

Plaintiff
has been granted leave to proceed without prepaying the
filing fee for this action. The Prison Litigation Reform Act
of 1996 requires federal district courts to screen a
prisoner's complaint and to dismiss the complaint if it
is frivolous, malicious, fails to state a claim for which
relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C.
§§ 1915(e)(2) and 1915A; Flanory v. Bonn,
604 F.3d 249, 252 (6th Cir. 2010); Smith v.
Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001). A
complaint is frivolous if it lacks an arguable basis in law
or in fact. Neitzke v. Williams, Sr., 490 U.S. 319,
325 (1989).

II.

A pro
se civil rights complaint is to be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Nonetheless, Federal Rule of Civil Procedure 8(a) requires
that a complaint set forth “a short and plain statement
of the claim showing that the pleader is entitled to relief,
” as well as “a demand for the relief
sought.” Fed.R.Civ.P. 8(a)(2), (3). The purpose of this
rule is to “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). While this notice pleading standard does
not require “detailed” factual allegations, it
does require more than the bare assertion of legal principles
or conclusions. Twombly, 550 U.S. at 555. Rule 8
“demands more than an unadorned, the
defendant-unlawfully-harmed me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). “Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555-56 (citations
and footnote omitted).

The
factual allegations in Plaintiff's complaint state in
full:

During my arrest, 3 officers (Swartz, Knablock, and Ford),
use an unnecessary amount of force to restrain and arrest me.
A body cam video with audio recording and testimony from the
3 involved officers support my claim. I informed the
officers, during my arrest, that I had a medical condition
and that they were hurting me, to which Ford responded
“shut the fuck up.” I told them I was not
resisting, they had me pushed up against my vehicle and I was
trying to use my arms to protect myself from injury. This
occurred on February 10, 2017, approx. 2100 hrs, Bad Axe, MI.

Compl. at 3.

This
thread-bare statement of facts fails to state a claim. Under
the Fourth Amendment, individuals have a right to be free of
excessive force when police make an arrest. See Graham v.
Connor, 490 U.S. 386, 394-95 (1989). The Supreme Court
has held, however, that “not every push or shove, even
if it may later seem unnecessary . . . violates the Fourth
Amendment.” Id. at 396. An excessive-force
claimant must show something more than the use of “de
minimis force” causing only a “trifling
injury” in order to sustain a claim. Leary v.
Livingston County, 528 F.3d 438, 443 (6th Cir.2008);
Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)
(explaining that the Constitution does not prohibit “de
minimis uses of physical force” so long as “the
use of force is not of a sort repugnant to the conscience of
mankind.”). Here, Plaintiff does not even truly allege
a de minimis use of force, stating only that the police
officers “had me pushed up against my vehicle.”
Moreover he does not allege any injury, stating only that
“they were hurting me.” Accordingly,
Plaintiff's complaint fails to state an excessive force
claim under the Fourth Amendment.

Finally,
two of the named defendants, the Huron County Sheriff's
Department and the Bad Axe Police Department, are not legal
entities capable of being sued. Police departments are not
“persons” for purposes of a § 1983 action.
Laise v. City of Utica, 970 F.Supp. 605, 608 (E.D.
Mich. 1997) (“[T]he police department is not a legal
entity against whom a suit can be directed”);
Pierzynowski v. City of Detroit Police Dep't,
941 F.Supp. 633, 637 (E.D. Mich. 1996); Moomey v.
Holland, 490 F.Supp. 188, 190 (W.D. Mich. 1980).
Accordingly, Plaintiff's claims cannot be pursued with
respect to these two named defendants.

III.

Accordingly,
it is ORDERED that the complaint, ECF No. 1, is summarily
DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;It is
further ORDERED that an appeal from this order would be
frivolous and could not be taken in good faith. 28 U.S.C.
&sect; 1915(a)(3); Coppedge v. United States, 369
U.S. 438, 443-45 (1962). For ...

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